As Time Goes By

On Nov. 20, 1945, the United States and its Allies launched their final confrontation with Nazi Germany.

An Allied military tribunal convened that day in a make­shift courtroom in war-torn Nuremberg, the spiritual home of the Nazi movement.

Stand­ing trial were 21 surviving mem­bers of Adolf Hitler’s inner circle, Hermann Goering and Albert Speer among them. Later, trials were held for lower-level Nazi functionaries in specific groups, including generals, doctors and judges. Separate trials were held in Tokyo for Japanese war leaders.

Sixty years later, the Nuremberg trials are far more than artifacts of history. If anything, they may be more relevant than ever as precedents for using international law to bring order to some of the worst trouble spots in today’s world.

“More than any of the specific decisions, it is the principles established at Nuremberg that are its true legacy,” Whitney R. Harris told attendees of a conference marking the 60th anniversary of the start of the trials. The ABA Inter­na­tional Law Sec­tion was chief sponsor of the Nov. 11 conference at the George­town Uni­versity Law Center.

At the age of 93, Harris of St. Louis is perhaps the last surviving member of the team of lawyers that worked with chief U.S. prosecutor (and Su­preme Court justice) Robert H. Jackson from the very start of the first trial at Nuremberg.

Joining Harris at the conference were two other veterans of the trials: Henry T. King Jr., director of the Canada-United States Law In­stitute at Case Western Reserve University Law School; and Benjamin B. Ferencz, an adjunct professor at Pace University law school. (Harris and King are past chairs of the International Law Section.)

AN OBLIGATION TO THE VICTIMS

King and other speakers noted that the so-called Nur­em­berg principles established genocide and aggression as crimes under international law, recognized individual li­ability for and universal jurisdiction over certain crimes, limited head-of-state immunity, rejected the “superior orders” defense and provided the foundation for the international human rights movement. “Nuremberg marked the coming of international law as a force on our planet,” said King.

But fulfilling the promise of the Nuremberg trials still is a work in progress, conference speakers said.

One major issue is whether the International Criminal Court will live up to its mandate as the first permanent tribunal empowered to try individuals, including gov­ern­ment leaders and members of military forces, for war crimes and other serious violations of international human rights law. The ICC, created under the 1998 Rome Statute, continues to have a troubled relationship with the U.S. government, which objects that the court’s jurisdiction is too far-reaching.
Another key issue is what defines a war of aggression under international law. While the ICC’s jurisdiction encompasses cases of aggression, the states ratifying the court still have not been able to agree on a definition.

The issue was an easy one at Nuremberg, said Michael P. Scharf, director of Case Western’s international law cen­ter. “Obviously, what Hitler did was aggression, but the closer cases are much tougher.”

A particularly difficult question is when a nation may take pre-emptive action in self-defense. “Waiting for some­­one to throw the first punch is not something a country is always willing to do” in an age of terrorism and weapons of mass destruction, said Derek Gilman of Stam­ford, Conn. He was the principal U.S. adviser on the Iraqi statute establishing the tribunal that is trying Saddam Hussein on charges that include aggression.

“The world is still a savage place,” Ferencz said, “crawl­­ing, crawling toward civilization. There is progress be­ing made—significant progress. We have an obligation to those who perished to make a more peaceful and humane world.”